Case No.:

AC.REV-1 21-1958

Court:

Court of Appeal

Issue No.:

1960

Principles

·  Mortgage—Mortgagee may prescribe against mortgagor only by. denouncing the mortgage

·  Land Law_Prescription_Mortgagee may prescribe against mortgagor only by denouncing the mortgage

A possessory mortgagee may not prescribe against the mortgagor merely by remaining in possession for ten years after the mortgage debt is due. For the Prescription and Limitation Ordinance to operate, there must in addition be a “denunciation of the mortgage” by the mortgagee.

A possessory mortgagee may not prescribe against the mortgagor merely by remaining in possession for ten years after the mortgage debt is due. For the Prescription and Limitation Ordinance to operate, there must in addition be a “denunciation of the mortgage” by the mortgagee.

Judgment

(COURT OF APPEAL)*

MOHAMED SADDIK MOHAMED v. HEIRS OF DAOUD MOHAMED

AC.REV-1 21-1958

B. Awadalla J. October 4, 1958:—I am of opinion that this application should be summarily dismissed.

* Court: M. A. Abu Rannat C.J. and B. Awadolla J.

The decree of the District Judge Halfa was in my view correctly reversed by His Honour the Province Judge Darner who had dealt with the point involved with great ability and painstaking research.

Briefly stated, the facts of the case are as follows. Plaintiff, a person who left the Sudan in 1916 and whose whereabouts are still unknown, has a Sagia (No. 39-12 Iskeit) registered in his name. The defendants had been in possession of this Sagia—cither personally or through their predecessor in title—since before the disappearance of the registered owner.

In 1954 a certain Hussein Khalil Ibrahim obtained from the Sharia Court at Haifa a decree o guardianship over the registered owner’s property and in that capacity claimed possession of the Sagia. The defendants contested the action on the ground that their predecessor entered the land as possessory mortgagee and that the plaintiff’s action for redemption was barred by lapse of time. They then counterclaimed for rectification of the register on grounds of prescription. In finding for plaintiffs, the District Judge said:

(a) that a mortgagee cannot prescribe, otherwise he would be allowed to defeat the maxim “once a mortgage always a mortgage";

(b) that Civil Justice Ordinance, S. 119, allows a mortgagor to redeem at any time;

(c) that a mortgagee, being a usufructuary, can never prescribe

In reversing this decree, the Province Judge relied on Heirs of Mur El Gawab Mohamed v. Heirs of Abdel Hadi Abdalla Dar Sileih, AC-REV-46- 2943 (C. C. G. Cummings C.J.), and there is no doubt about the correctness of his decision. I would only like to point out that this remark about Civil Justice Ordinance, s. 119, certainly cannot apply to a mortgagor who does not part with the possession of his property. I do not think there is any difference between the rule here and in England. Cheshire, Modern Law of Real Property 577 ( 7th ed., 1954) says ‘ When, as in the ordinary case, a mortgagee does not take possession of the land, the mortgagor can redeem regardless of the lapse of time.”

Furthermore, I hope that Heirs of Mur El Gawab Màhamed v. Heirs of Abdel Hadi Abdalla Dar Sileih, AC-REV-46- will not be misunder stood as laying down any rule wider than what it says. It does not say that whenever a mortgagee in possession was allowed to stay for more than ten years after the mortgage debt became payable, the Prescription and Limitation Ordinance prevents redemption. To allow the Ordinance to operate, there , must have been “a denunciation of the mortgage.” In that case, Heirs of Mur El Gawab Mohamed v. Heirs of Abdel Hadi Abdalia Dar Sileih, AC-REV-46- the court made a warning against any wider interpretation of the ratio decidendi. It said “This decision must not be taken to allow mortgagees easily to prescribe ‘against their title’: what

it does lay down is that such prescription is not absolutely impossible and that in the very special facts of this case, it was made out here.”

Like Heirs of Mur El Gawab Mohamed v. Heirs of Abdel Hadi Abdalla Dar Sileih, AC-REV-46-1943, the case under consideration has also its special circumstances from which a “denunciation of the mortgage” could be inferred.

M. A. Abu Rannat C.]. October 4, 1958:—I agree. Application for revision is summarily dismissedز,

 [ Editor's note: Compare Heirs of Abu Doon KhaliI v. Yousif Khalil  Abdulla, Hasiheisa CS-1o2- 1939 (M. A. Abu Rannat D.J.), Gezira Province HC-REV-42- (C. C. G. Cummings J.H.C.), where a similar result was reached when an heir claimed rights to land by prescription against his co heirs]